Divorce is difficult enough to navigate when both spouses can agree on the basics. When this is not the case and there is a serious conflict between the spouses on one or more key aspects of how their split should be handled, each partner requires the services and support of a strong family law attorney to make sure their rights, and the rights of their children, are fully protected. Randall J. Borden, Attorney at Law is a well-respected legal advocate for divorce clients throughout Virginia and Maryland.
For more than 30 years, Attorney Borden has successfully practiced divorce law out of his office in Fairfax. He is well-respected for his integrity and superior representation of his clients, many of whom are going through the most challenging period of their lives. You can rely on his extensive knowledge of the law, and his carefully customized legal strategies, to bring you the best possible outcome.
What Sets a Contested Divorce Apart from an Uncontested Divorce
A divorce is considered contested when the spouses disagree on one or more key elements of the divorce settlement, such as spousal maintenance (alimony), division of property, or child custody. Unfortunately, disputes about any of these matters, even ones that seem “only” financially based, are typically laden with long-term emotional content that interferes with an easily negotiated settlement. Unless opposing attorneys get their clients’ wishes into some kind of reasonable alignment, the situation results in a courtroom trial.
Grounds for Contested Divorce in Virginia and Maryland
The grounds for a contested divorce in these two states, while similar, are not identical. In Virginia, grounds for a contested divorce include adultery, cruelty, desertion (abandonment), and conviction of a felony. These are considered “fault” grounds; proving one spouse’s misconduct may justify the divorce. On the other hand, “no-fault” (uncontested) divorces can be filed after a separation period of one year, or 6 months if there are no minor children and the parties have signed a separation agreement.
Maryland also recognizes adultery, desertion, cruelty, and conviction of a crime as fault grounds for a contested divorce, and also adds incurable insanity to the list. In Maryland, as in Virginia, a no-fault divorce is possible after 12 months of continuous separation.
Delving into the Specific Grounds for Contested Divorce and Their Impact at Trial
Let’s take a deeper look at how proving a particular fault as grounds for divorce may affect the judge’s other decisions:
- Adultery, if proven, may persuade the judge to alter the decision regarding spousal maintenance. In that case, the innocent party may have their duty to provide alimony waived. The substantiated charge of adultery may also impact property division, but only if the guilty spouse is proved to have spent marital funds in conducting the affair.
- Willful desertion or abandonment occurs when one spouse leaves the other for a minimum of one continuous year. However, there must be ‘willful and malicious’ intent behind taking this action for it to be grounds for divorce. For example, an abused spouse moving out of the marital home for self-protection cannot be considered guilty of abandonment. Conversely, in some cases, the deserting partner may be found guilty of using marital assets to fund their lifestyle while away and then be penalized by receiving a smaller portion of the couple’s shared property.
- Cruelty has a relatively broad definition when used as grounds for divorce. It can be used to describe any type of bodily harm that endangers health, does physical damage, or endangers life. One injury may be considered severe enough to warrant a divorce without the necessity of establishing a pattern of domestic abuse. Cruelty may also cover psychological harm, including humiliation, coercive threats, abusive language, and other types of malicious behavior. Of course, such misconduct must be corroborated by witnesses or proven by written or recorded messages, photographs, or videotapes to be persuasive.
- A criminal conviction can cause a marital relationship to deteriorate, especially if it involves incarceration. A minimum of one year of imprisonment can be grounds for a contested divorce. Beyond that, if the judge feels that hiring a guardian ad litem is necessary, more costs will be incurred which may affect the asset division of marital property.
Steps Involved in a Contested Divorce
As in most areas of the law, contested divorce follows a protocol, consisting of a series of well-delineated steps:
- A complaint is filed by one spouse and served on the other. This complaint states the grounds for divorce.
- The served spouse responds to the filing in a specified time frame (21 days in VA, 30 to 60 days in MD), either admitting or denying the allegations of the complaint. The responding spouse may also file a counterclaim.
- A hearing, known as a pendente lite relief hearing, is held in several following weeks. During this hearing, the judge will make temporary orders regarding custody, child support, and spousal support while the spouses and their attorneys prepare for a full divorce trial.
- A discovery process takes place. Both parties engage in fact-finding and uncover evidence to prepare for trial. The following discovery tools are commonly used in a divorce proceeding: interrogatories, depositions, subpoenas, and requests for production of documents.
- The trial is scheduled and takes place, usually 6 to 8 months later.
During proceedings, both parties have the opportunity to make opening and closing statements and bring forth witnesses to testify on their behalf.
- The final stage of a contested divorce is the divorce order (decree) — the document in which all the judge’s decisions are clearly stated once all the evidence has been presented and reviewed.
Needless to say, it is vital to have a capable and agile lawyer to guide you through each step of a contested divorce to provide you with the best chance of a favorable resolution. It is worth noting that litigation can be costly and expenses are often divided between the parties by the judge.
Contact Our Divorce Lawyer in Fairfax, VA
While in most cases, it is preferable to negotiate the terms of a marital split rather than to engage in a contested divorce, this is not always possible. If you are faced with the problems of a contested divorce and feel overwhelmed by financial and emotional pressures, now is the time to contact Randall J. Borden. He has the wisdom, compassion, and sharp legal skills to help you through with as little stress as possible.